Since it was formed in 2004, on the recommendation of the 9/11 Commission, The Privacy and Civil Liberties Oversight Board has been blasted by civil libertarians as a tool of the administration, more interested in whitewashing War on Terror–related privacy violations than serving as a genuine check on government intrusion. One of the board's five members even resigned in protest, citing among other things "the vast array of alphabet soup agencies and bureaucracies in the national security apparatus" that sought "to control and modify the Board's public utterances." So last year, Congress sought to give the board greater autonomy by moving it out from under the aegis of the White House and reconstituting itself as an independent boad within the executive branch. The response of the White House, Wired reports, has been to drag its feet in appointing a new board -- meaning there is no one on the board as of January 30th -- prompting bipartisan criticism from top members of the Senate's Homeland Security Committee.

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The board's second annual report (pdf), released late last month, does not exactly inspire confidence in its assiduousness as a privacy watchdog -- even when staffed. After touting its excellent working relationship with the White House, it moves to a "nothing to see here" review of the post-9/11 use of the material witness statute (MWS) as a detention tool. Aside from one "terrible mistake," the report asserts the board "was not made aware of specific problems with the use of the MWS in the anti-terrorism context" and cites a claim by the Justice Department that "on only nine occasions since the attacks of September 11, 2001 has the MWS been used in terrorist-related investigations." That is hard to square with the findings of a joint report by Human Rights Watch and the American Civil Liberties Union, which found some 70 instances of 9/11-related detention, though the discrepancy may be explained by the frequent use of immigration violations as a pretext for detentions that were actually related to terror investigations. The board's analysis of the Protect America Act, passed last August, similarly reads like a compilation of White House talking points.

This should not be all that surprising given the composition of the old board, which consisted of such Republican stalwarts as President Bush's former solicitor general, Ted Olson. With debate over reforms to the Foreign Intelligence Surveillance Act raging in the Senate, the White House appears less than eager to have a less-friendly set of eyes reviewing its surveillance policies.